Virginia Supreme Court Declines to Set Aside Defamation Verdict Against County Administrator

In Virginia, as in other states, potentially defamatory statements made in official government proceedings receive protection from defamation claims. But some such statements get the benefit of absolute privilege, which means that even a knowingly false statement can’t be the basis of liability, while a larger category of statements receive only a qualified privilege. A qualified privilege gives the plaintiff an opportunity to show that the statement was made with malice — and to recover damages if he or she can prove that it was.

In Small v. Nogiec, the Supreme Court of Virginia examined remarks made by a county assistant administrator during a meeting of the Board of Supervisors of Isle of Wight County, and concluded that only a qualified privilege applies to the statements since they were not made in a legislative context. The court therefore unanimously upheld a jury verdict for the plaintiff.

In March 2007, Alan Nogiec retired from his job as the county’s director of Parks and Recreation. A few months before he retired, the county’s museum was damaged by heavy rains. In May 2007, Assistant County Administrator Patrick Small gave a report at a board meeting about efforts being undertaken to repair the museum. He said that IsleOfWight.jpgbefore the storm, information about the likelihood of flooding “had been suppressed” by the parks director and that this “borders on negligence in my opinion.”

Nogiec sued Small, claiming that these statements were defamatory and were made with malice. A jury returned a $150,000 verdict for Nogiec on this claim. Small appealed, asserting that his statements were absolutely privileged since he was testifying at a meeting of a county board.

The Supreme Court of Virginia unanimously upheld the jury verdict. It ruled that even assuming that absolute privilege applies to bodies such as the board of supervisors and not only to the state’s General Assembly, it applies only to actual legislative work by those boards and committees and not to statements that don’t concern the creation of legislation.

Here, the court found that the evidence showed that the board was acting in a supervisory or administrative capacity, not in a legislative capacity. It had convened to receive a report on the damage to the museum and the efforts to repair it, not to create legislation. Since the board was not acting as a legislative body, Small’s statements were entitled only to a qualified privilege, not an absolute one. Nogiec was entitled to submit to the jury the issue of whether the statements were made with malice, and the jury found in his favor. Thus the Virginia Supreme Court upheld the jury verdict.

The court noted that it was balancing the importance of permitting people to speak freely in governmental proceedings against the right of an individual to enjoy his reputation free of defamatory attacks. Accordingly, people who make potentially defamatory remarks need understand that in many contexts, their statements won’t be fully privileged and that a jury may one day be sitting in judgment of them.

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